Legalization Of Recreational Marijuana Use In Arizona – Does This Stop Users From Being Arrested And Charged For DUI By Drugs?

Since the legalization of recreational THC use here in Arizona, we have fielded a lot of questions about whether police can still arrest drivers for DUI when all they have consumed is THC.  Our clients have asked things like “why did they arrest me for DUI last night?  I did not drink; all I did was smoke some weed a couple hours before.  It’s legal now right?”

There are two different ways the State can prosecute someone for DUI Drugs in Arizona:

A.R.S. §28-1381(A)(1) – Often referred to as “DUI to the slightest degree” it says it is illegal for someone to operate a motor vehicle while under the influence of alcohol, any drug, an inhalant that contains a vapor releasing substance, or a combination of these. If a person is found to be impaired even to the slightest degree by drugs, then they can be charged with driving under the influence.

A.R.S. §28-1381(A)(3) – Often referred to as “DUI Drugs”, it says it is illegal for someone to drive a motorized vehicle while under the influence of any drug defined in section 13-3401 or its metabolite in their body. These drugs include marijuana, illegal drugs like cocaine or heroin and prescription medications (when used without a valid prescription).  In a prosecution for this statute actual impairment at the time of driving does not need to be proved, simply having the drug or drug’s metabolite in their system is enough.

DUI Drug Police Stop Procedure

So even though THC is now legal to use when a police officer thinks that the driver of a vehicle, he just pulled over may be impaired by its use than he can conduct a DUI investigation and arrest the person for DUI if he has the requisite probable cause.  Things the Officers look for to make a DUI to the slightest degree and/or DUI Drugs arrest are:

  • Admission to THC use by the driver.
  • Red eyes.
  • Odor of cannabis, or paraphernalia found inside the vehicle.
  • Delayed or decreased reaction time.
  • Decreased short-term memory.
  • Poor hand-eye coordination.
  • Lack of concentration.
  • Decreased perception of time and distance.
  • Poor Field sobriety test results (ALWAYS REFUSE TO PERFORM THESE)

The Officer will then ask you to provide a blood sample.  BEFORE YOU CONSENT OR MAKE ANY STATEMENTS BE SURE TO CALL US AT (480) 248-7666.

After the Officer obtains the driver’s blood it will be sent to a crime lab and tested for THC.  Delta 9-tetrahydrocannabinol (Delta 9 THC) is the psychoactive substance that creates impairment from using cannabis. Delta 9 THC becomes inactive once metabolized by the body – but that can take hours to happen and leaves you at risk for a DUI.  The test results measure the amount of nanograms of delta 9-tetrahydrocannabinol (THC) per milliliter in the person’s blood.  Unlike alcohol’s .08 BAC limit, there is no DUI “per se” law for marijuana here in Arizona, so just because you test positive for a certain amount of nanograms per milliliter you cannot automatically be found guilty of DUI to the slightest degree.  Several States have established these per se laws though, including:

  • Montana 5 nanograms/milliliter;
  • Nevada 2 nanograms/milliliter;
  • Ohio 2 nanograms/milliliter;
  • Pennsylvania 1 nanogram/milliliter;
  • Washington 5 nanograms/milliliter;
  • The limit in Colorado of active Delta 9 THC in a driver’s blood, which gives rise to a “permissible inference” that the person is under the influence of cannabis, is 5 nanograms or more per milliliter in the whole blood.

Our office is of the opinion that these “per se” laws are arbitrary and inappropriate as there has been no definitive study/studies concluding the accuracy of these numbers and because the effect of marijuana can vary depending on many factors, including:

  • The strain of marijuana,
  • The strength of the weed,
  • The mode of administration (e.g., smoked, eaten, vaped, or tincture),
  • Other substances in your system,
  • Whether you have eaten, and
  • Your prior experience with marijuana.

Arizona House Representative John Kavanagh recently introduced 2021 House Bill HB1084 which would establish a DUI Per Se limit of just 2 nanograms/milliliter of THC in a driver’s body.  This means that if the bill becomes law, a driver would be guilty of DUI if they had 2 ng/ml/ of active THC in their body within 2 hours of driving or being in actual physical control of a motor vehicle, even if they are not impaired to the slightest degree. Again we believe this is a completely arbitrary number with no scientific validity based on our many years of DUI Defense and review of the applicable studies, but should it pass and become a law the new recreational THC use law would not protect anyone who tests above this very low number of nanograms/milliliter.

What To Do If You Find Yourself Arrested For A DUI Drugs?

DUI is a serious charge with mandatory jail time in Arizona. If you are facing DUI charges, you must speak with an experienced DUI defense attorney as soon as possible. Here at Rosenstein Law Group, we have the only two board-certified DUI Defense attorneys in Maricopa County. Do not wait. Get our team of winning criminal defense attorneys working on your case immediately without risk. Phone and video consultations are now available in addition to in-person office appointments. Our attorneys will come to get you out of jail and will aggressively fight to protect your rights in court to get the best possible result for you. We are waiting for your call at 480-248-7666.

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